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By Henry I. Miller and John J. Cohrssen

There is a Japanese proverb that goes, “Faith makes even the head of a sardine the object of worship.” That’s the sort of devotion that seems to be driving many Americans to buy overpriced organic products such as food, bed linens, pillows and clothes, sales of which increased 83% between 2007 and 2012.

An important spur to the popularity of these products is the USDA-regulated “organic” label, which implies to many consumers that these food products are somehow superior. But that is not what the label actually means. Nor is it true. Nor, arguably, does the label pass constitutional muster, especially in light of a recent U.S. Supreme Court decision.

The organic food production movement began in the early 1900s to seek ways to conserve and regenerate the soil by having farmers fertilize primarily with organic waste such as manure and crop residues. Because of growing confusion about what constituted “organic” agriculture, in the late 1980s industry pressured Congress to establish a single label that would reflect conformance with a national standard.

The outcome was the 1990 "National Organic Food Production Act," which directed USDA to establish: (1) a national organic production certification program, (2) a label for organically produced agricultural products, (3) a national list of approved and prohibited substances to be included in the organic production standards, and (4) an accreditation program for agents who would certify conformance. The meaning of the USDA organic label was muddled from the beginning. At the release of the final national organic standards, Secretary of Agriculture Dan Glickman emphasized the fundamental meaninglessness of the designation:

Let me be clear about one thing, the organic label is a marketing tool. It is not a statement about food safety. Nor is ‘organic’ a value judgment about nutrition or quality.

By creating this marketing tool, USDA conferred a valuable seal of approval on products made by USDA-certified producers with government-sanctioned processes and procedures that are in no way related to safety, nutrition or quality. It is arguably an example of the kind of governmental paternalism described by economists Richard Thaler and Cass Sunstein in their controversial book, “Nudge: Improving Decisions About Health, Wealth and Happiness.” Their thesis is that individuals often don't know what's in their own best interest but that simple changes to the social environment--including via public policy--can sway people in subtle ways toward more “rational,” or favored, behavior. They would propose, for example, putting the fruit before the hamburgers in the college cafeteria line because they believe that hungry students are prone to grabbing the first thing they see. An example of a policy nudge put in place when Sunstein served as President Obama's regulatory head in the Office of Management and Budget shifted the burden on employees to opt out of Individual Retirement Accounts rather than opting in, with the goal of increasing participation in these savings plans.

It is noteworthy that with the release of the standards for organic agriculture, no longer was the organic movement focused solely on conserving or regenerating the soil; animal welfare and the exclusion of certain modern technologies that would improve the efficiency of production and the safety and quality of products were added to the paradigm. In response to public comments, for example, USDA excluded foods from the organic definition if they were irradiated to eliminate insects and pathogenic microorganisms, a process popular in the spice industry, as well as crops such as corn, canola and soybeans crafted with the most precise and predictable techniques of genetic engineering.

An important unknown was how the new USDA regulation and promotion of organic food practices would affect the environment--exactly the sort of issue that the National Environmental Policy Act dictates must undergo an Environmental Impact Statement. One was never performed, however, because USDA located the National Organic Program (NOP) in its Agricultural Marketing Service, an organization whose mission is to promote U.S. agriculture, and which USDA has "categorically exempted" from the EIS requirement because, supposedly, "AMS programs and activities have been found to have no individual or cumulative effect on the human environment."